Tuesday, 9 October 2018

ADASS Guidance on Ordinary Residence

The Association of Directors of Adult Social Services
(ADASS) has recently published its guidance on ordinary residence. As I pointed
out in my blog post in 2014, the Care Act 2014 revised the Mental Health Act, principally
with regard to S.117 aftercare, but also with regard to the concept of “ordinary
residence”.

It could be very helpful for ADASS to issue this guidance,
as its tends to be local authorities who get into expensive legal disputes with
each other over responsibility for packages of care, and this may reduce the
incidence of these disagreements.

The concept of ordinary residence is important, as it
establishes which local authority is responsible for providing for the care
needs of people identified by the Care Act as being eligible to have their
needs met.

The guidance points out:

In the vast majority of cases it will be obvious where an
individual is ordinarily resident – and consequently which local authority is
responsible for meeting the eligible social care needs of that individual. The
issue of where an individual is ordinarily resident will usually arise when a
person is moving or has moved from one geographical area to another.

Since “ordinary residence” is not actually defined in the
legislation, it is still necessary to rely on case law to clarify its meaning.
It may not be as simple as being where someone is actually living at the time
they become eligible for services, as other factors may intrude. What is the
ordinary residence of someone who has a tenancy or owns a home in LA 1, but
happens to be on holiday with relatives in LA 2?

The guidance considers at length two cases: the Shah case,
relating to people with capacity, and the Cornwall Case, relating to people
lacking mental capacity to make decisions about residence.

The Shah Case

The Shah case goes back to 1982. Lord Scarman said in this
case:

Unless... it can be shown that the statutory framework or
the legal context in which the words are used requires a different meaning, I
unhesitatingly subscribe to the view that ordinarily resident refers to a man’s
abode in a particular place or country which he has adopted voluntarily and for
settled purposes as part of the regular order of his life for the time being,
whether of short or long duration.

Length of residence is not necessarily a factor in deciding
ordinary residence in this context: the Shah case concluded that someone must
be living in a particular place for a “settled purpose as part of the regular
order of his life for the time being, whether of short or long duration.”

The ADASS guidance states that:

Settled purpose can be established at the instant of an
individual’s move to a new area, if that move is with the intention of
remaining there permanently or for the foreseeable future. That is because the
person will have a settled purpose from the moment they arrive.

However, if they are only temporarily away from their
normal place of residence, then their permanent home will continue to be their
ordinary residence for the purposes of the Care Act.

This case concerned PH, a man born with severe physical and
learning disabilities, who had been accommodated since the age of 4. He was
with foster parents until he was 18, and then went into residential care. The
question the Supreme Court had to answer was which LA was responsible for his
care (under the Care Act)?

Was it Wiltshire, where he lived with his parents until he
went to foster carers? Was it South Gloucestershire, where he lived with the
foster carers? Or was it Cornwall, where his parents moved to in 1991?

At the
time of the decision, he was living in a fourth LA, Somerset, where he had been
placed in residential care after leaving his foster carers. The issue was his
ordinary residence prior to his placement in Somerset.

While the initial finding was that Cornwall was
responsible, the Supreme Court considered that this was insupportable, and
concluded that Wiltshire retained responsibility for funding, as they were
responsible for the original placement.

The Supreme court concluded:

For fiscal and administrative purposes his ordinary
residence continued to be in their area, regardless of where they determined
that he should live. It may seem harsh to Wiltshire to have to retain
indefinite responsibility for a person who left the area many years ago. But
against that there are advantages for the subject in continuity of planning and
financial responsibility. As between different authorities, an element of
arbitrariness and “swings and roundabouts” may be unavoidable.

ADASS draws attention to the deeming provisions in S.39
Care Act 2014. This states that a LA “cannot ‘export’ its responsibilities
under the Care Act by placing an individual in a different geographical area.”
Certain types of accommodation, eg care homes, shared lives scheme
accommodation or supported living accommodation, cannot be considered when
determining someone’s ordinary residence.

The basic rule therefore is that a person “is ‘deemed’ or
presumed to continue to be ordinarily resident in the area he was ordinarily
resident in immediately prior to commencing living at the accommodation in
question.”

The Care Act/Mental Health Act interface

Under S.117, the LA in which the patient was “ordinarily
resident” immediately before being detained is responsible for aftercare. The
Shah case applies in determining ordinary residence for patients detained under
s.3 (and some Part III sections).

The ADASS guidance states:

It does not matter who is paying for care and support at
the time of detention or which local authority employed any AMHP who might have
been involved in the detention.

It goes on to say:

Where someone goes into hospital on a voluntary basis, they
do not lose their residence. However, if during the voluntary admission the
individual loses their previous accommodation, they no longer continue to be
resident in that area. In such a case, if their presence in hospital is
sufficiently settled they may acquire residence in hospital. If, having become
resident as a voluntary patient in hospital, they are subsequently detained
(for example) under section three, that will result in the authority
responsible (for section 117 aftercare) being that where the hospital is
situated, as that is where they will be resident.

This scenario consistent with the case law I
discussed in this blog post.

I have only dipped into the full guidance in this post. It is
to be hoped that the guidance will reduce the number of disputes between LA’s
over their Care Act responsibilities and their responsibilities under S.117. I
am certainly aware of cases where LAs continue to dispute their statutory
responsibilities, often at the expense of the person whose needs have been
assessed.

Unfortunately, while social care budgets continue to be
squeezed and cut back to the bone, LAs are going to continue to fight to avoid
the sometimes horrendously expensive care packages that the most vulnerable and
disabled nevertheless continue to need.

No comments:

Post a Comment

Subscribe!

Join!

Why not join? With over 5200 members, it's an ever growing, but nevertheless friendly and supportive group. AMHPs, AMHP trainees, social work and nursing students, service users, carers and relatives, and others with a professional or personal interest in mental health, such as psychiatrists, nurses, psychologists, police officers and bloggers, all get on together (most of the time!). It's a great place to pose a question or discuss thorny issues relating to the Mental Health Act, the Mental Capacity Act and mental health in general.

Follow the Masked AMHP on Twitter!

You can follow The Masked AMHP on Twitter: @MaskedAMHP You know you want to.

Explanation of Terms used in this Blog

About Me

I am an Approved Mental Health Professional and Practice Consultant working for a local authority AMHP Service in England. I have practiced under 3 Mental Health Acts, since as long ago as 1981, even before the 1983 Mental Health Act. Which makes me pretty ancient now.
This blog is designed to illuminate and explain the functions and dliemmas of an AMHP within the Mental Health Act. It is intended to be of help to professionals and service users alike. I hope that it is both informative and entertaining.
I am also a freelance trainer, and teach mental health law on an AMHP course. I've appeared at conferences all over England and Wales. If you'd like to book me for your conference or training event just send me an email.